The Property Poser panel often receives queries relating to the discovery of defects during the course of a property sale or shortly thereafter.
This week a buyer tells us that the transfer of his property is still in progress but substantial leaks in the roof have been discovered.
When the reader reported it, the estate agent obtained quotations for the repairs and a claim was instituted with the relevant insurer. It has subsequently transpired that the insurer will not cover the claim and it also appears that the seller will not accept the quotations.
As we have mentioned before, in order to find a solution, one has to distinguish between latent and patent defects, says Schalk van der Merwe from Rawson Properties Helderberg.
“A patent defect is something that is, or should be, identifiable upon inspection of the property in a reasonable manner. Examples include wall cracks, broken windows, missing tiles and so on.”
A latent defect on the other hand is not apparent during an ordinary inspection by a reasonable buyer, says Van der Merwe. “It includes faults that are not immediately obvious and are hidden from view, such as dampness behind a piece of furniture.”
Van der Merwe says it is important to remember that the test is objective – it takes into account what could have been seen during the original inspection of the property, not only what the buyer did, in fact, see.
“A leaking roof is not something that would necessarily be visible upon inspection, unless there is evidence of watermarks on the ceilings.”
The reader has not indicated whether he had noticed any problems or asked any pertinent questions during the initial inspection, says Van der Merwe.
Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says the question of whether or not the seller was aware of the leak also needs to be considered.
“Had be been aware and not disclosed it, the purchaser may have a claim varying from a reduction in the purchase price to claiming for repairs. He could possibly even seek to cancel the contract, if he can show that he would not have bought the property had he known about the defect.”
Geldenhuys says the Consumer Protection Act is only helpful in such a situation if the transaction falls within the provisions of the Act. “The Act is applicable to transactions that are concluded in the ordinary course of the seller’s business.”
For example, a developer who builds and sells properties and enters into sale agreements as part of his daily business dealings would be subject to the Act, says Geldenhuys.
“Whereas property speculators fall under the same classification, once-off transactions, such as when individuals sell their homes, are not subject to the Act.”
However, says Geldenhuys, the estate agent’s service is regulated by the Act even if the transaction is not, therefore the agent must ensure that he or she markets a property responsibly by obtaining as much information as possible from the owner.